Service v. Union Pacific Railroad

Citations: 153 F. Supp. 2d 1187; 12 Am. Disabilities Cas. (BNA) 384; 2001 U.S. Dist. LEXIS 12182; 2001 WL 939064Docket: Civ. S98-2327 FCD DAD

Court: District Court, E.D. California; July 30, 2001; Federal District Court

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Dennis Service, the plaintiff, alleges that Union Pacific Railroad Company and Renzenberger, Inc. discriminated against him by failing to accommodate his asthma, violating the Americans with Disabilities Act (ADA) and the California Fair Employment and Housing Act (FEHA). This claim is part of his Third Amended Complaint. Union Pacific's motion for summary judgment regarding this claim was denied by the court.

Service began his railroad career in 1963 and worked as a locomotive engineer after transferring from switchman. He was diagnosed with asthma in the late 1970s, which worsened over time, particularly when exposed to tobacco smoke at work. He had requested that co-workers refrain from smoking in the locomotive cab, with mixed compliance. His medical treatment included inhalers and regular injections, with advice from his allergist to avoid not only cigarette smoke but also its residue.

In the early 1990s, Southern Pacific implemented a no-smoking policy, which effectively reduced incidents of exposure for Service. However, after Union Pacific acquired Southern Pacific in 1996, it adopted a new smoking policy in May 1997, allowing smoking in cabs if all occupants agreed. Following this policy change, Service experienced an increase in smoke exposure and related symptoms, including chest tightness and shortness of breath.

Plaintiff experienced severe asthma attacks multiple times annually since the late 1980s but only reported one in June 1994 after an attack triggered by cigar smoke at work. Subsequent severe attacks occurred on December 12, 1995, and several dates in 1996 and 1997, leading to emergency medical assistance and missed workdays. Following a severe attack on May 24, 1997, Union Pacific imposed a medical block on the plaintiff's return to work and required a meeting to discuss his condition. During this meeting on June 23, 1997, assurances were given that no one would smoke in his presence, but suggestions for accommodations, including compliance with California's smoking regulations, were rejected. Union Pacific later implemented a no-smoking policy on February 1, 1999, and the plaintiff returned to work on August 9, 1999. In his Third Amended Complaint, the plaintiff alleges Union Pacific discriminated against him under the ADA and FEHA by failing to provide a smoke-free locomotive cab. The legal standard for summary judgment is outlined, stating it is appropriate when there are no genuine issues of material fact, requiring that material facts relevant to the claim be established.

The Americans With Disabilities Act (ADA) prohibits discrimination against disabled employees by requiring reasonable accommodations for their known limitations, unless such accommodations would cause undue hardship for the employer. A 'qualified individual with a disability' can perform essential job functions with or without reasonable accommodation. Union Pacific seeks summary judgment on the plaintiff's ADA claim, arguing that the plaintiff has not demonstrated being 'disabled' and that any accommodations provided were reasonable.

To qualify as 'disabled' under the ADA, the plaintiff must have a physical or mental impairment that substantially limits one or more major life activities. This assessment is made on a case-by-case basis. The court recognizes that the plaintiff's asthma is a physical impairment, but must determine if it substantially limits breathing, a major life activity.

In assessing substantial limitation, the court compares the plaintiff's ability to breathe with that of an average person, considering the nature, severity, duration, and long-term effects of the impairment. The plaintiff has evidence that exposure to tobacco smoke triggers severe asthma attacks requiring medication and hospitalization. Union Pacific contends that the plaintiff's asthma does not substantially limit his breathing due to the effectiveness of mitigating measures like inhalers and hot showers. However, the law states that the existence of mitigating measures does not exclude an individual from ADA protection; the determination of being 'disabled' relies on the actual limitations faced by the individual, regardless of corrective measures used.

Plaintiff's asthma cannot be effectively managed through preventative measures such as inhalers or hot showers; these aids only provide relief after an attack has begun and cannot control the condition entirely. Although these measures may reduce the duration of attacks, they do not mitigate the limitations imposed by exposure to tobacco smoke or its residue. Union Pacific's argument that plaintiff's asthma is not severe is unfounded, as he experiences symptoms like chest tightness, coughing, and shortness of breath when exposed to smoke, and has suffered six severe attacks between June 1994 and May 1997. His physician deems these attacks life-threatening, indicating that a triable issue of fact exists regarding the severity of the plaintiff's condition under the ADA. Furthermore, the assertion that plaintiff's condition is temporary lacks merit; he does not need to be in constant distress or experience frequent attacks to be considered disabled.

Regarding reasonable accommodations, the court must evaluate whether Union Pacific adequately accommodated plaintiff's asthma. Under the ADA, reasonable accommodations involve modifications to the work environment that enable a qualified individual with a disability to perform essential job functions. The employer is obligated to engage in a good-faith interactive process to identify suitable accommodations, triggered either by an employee's request or the employer's recognition of the need for accommodation. Union Pacific was informed of plaintiff's asthma and sensitivity to smoke as early as June 1994, with multiple injury reports submitted thereafter, including one detailing a severe attack caused by smoking in the locomotive cab. 

While a meeting on June 23, 1997, resulted in a verbal assurance that no one would smoke in the cab during plaintiff's shifts, Union Pacific's only tangible accommodation was an air freshener, reflecting a misunderstanding of the severity of plaintiff's condition. This limited response raises questions about the adequacy of the accommodations provided. Consequently, there are genuine issues of material fact regarding whether Union Pacific reasonably accommodated plaintiff's asthma.

An employer is not obligated to accommodate an employee if it would cause 'undue hardship,' defined as requiring significant difficulty or expense. Union Pacific claims providing the plaintiff with an 'irritant-free environment' constitutes an undue hardship; however, the plaintiff only requested a smoke-free workplace. Union Pacific has not demonstrated that accommodating this request would impose undue hardship, especially since it enacted a no smoking policy in 1999, indicating feasibility.

Under the California Fair Employment and Housing Act (FEHA), federal ADA interpretations are used in the absence of conflicting state law. The court does not need to decide on a recent FEHA amendment regarding the definition of disability because there is a triable issue of fact about whether the plaintiff's asthma substantially limits his breathing. As such, there are also triable issues regarding potential discrimination by Union Pacific under both the ADA and FEHA.

The court denied Union Pacific's motion for summary judgment concerning the plaintiff's claim. It noted that the case would be decided based on submitted briefs without oral argument. The plaintiff asserts he has an actual impairment, not merely a record of one, and the court finds sufficient issues of fact regarding the limitation of his breathing to avoid assessing limitations on his ability to work. Additionally, the refusal to accommodate the smoke-free request may constitute a violation of California law, although the court refrains from deciding the applicability of that law to Union Pacific, as other grounds for accommodation issues are sufficient.